COMMENTARY: Let the voters decide

 By Louis F. Meizlish

Early this month, the U.S. Sixth Circuit Court of Appeals in Cincinnati invalidated the State of Michigan’s 2006 ban on affirmative-action policies in college admissions, governmental hiring and contracting. The court’s reasoning in reaching that conclusion in Coalition v. Regents is rather troubling for those of us who believe the voters are those best equipped to set policy.
This voter-enacted ban—Proposal 2—came about after the U.S. Supreme Court ruled in 2003 that public colleges may take account of race in their admissions policies, but are under no obligation to do so under the federal Constitution.
The Cincinnati decision was not unlike a U.S. Supreme Court case in the mid-1990s, Romer v. Evans. There, a six-to-three majority on the high court invalidated a voter-enacted amendment to the Colorado Constitution which prohibited gay-friendly local ordinances—ordinances that, until their invalidation by Colorado voters, classified sexual-orientation-based discrimination as equally unlawful as race- or gender-based discrimination.
The Sixth Circuit’s reasoning, very similar to the Supreme Court’s reasoning in Romer, was essentially thus: Under Proposal 2, non-racial-minorities (e.g., veterans or the physically handicapped) can seek and obtain special consideration in college admissions and other state policies, but racial minorities now may not. This distinction, the Sixth Circuit concluded, violates the Fourteenth Amendment’s Equal Protection Clause by treating racial minorities different from other individuals.
The trend in the federal courts is a curious one: They have not held that that affirmative action and gay-rights ordinances are mandatory as a matter of the federal constitutional law. They have held, however, that once a state or its subunits enact such policies, voters “may not” repeal them.
This one-way street makes little constitutional sense. Suppose State A adopts affirmative-action policies and gay-rights ordinances, which its voters repeal at the next election. State B has never adopted such policies. At the end of the election, both State A and State B have identical policies: no affirmative action, no gay-rights ordinances. According to some federal courts, State A is violating the Fourteenth Amendment, while State B is not. And I thought the Equal Protection Clause was about not treating people differently!
What appears to be happening is that some federal courts are straining to assemble a constitutional doctrine that advances liberal policies on disputed social issues, even over the objection of large majorities of voters. The courts are using “process” as a cover to effect social change. Even though I am sympathetic to race-conscious admissions policies and would vote to support gay rights and gay marriage, I think this is a terrible idea. 
First, the constitutional basis for these recent decisions is highly debatable. The “constitutionalizing” of debatable social policy sends an unfortunate and unhelpful signal that it is the courts, not the Congress or state legislatures, that set American social policy. In removing these decisions from the political process, the courts foster cynicism, distrust of public officials and a high degree of contempt for the courts. Moreover, it results in almost every judicial nomination becoming highly politicized, where the focus becomes the litmus test, not the law. Conservatives should ask themselves if, almost four decades later, they’re comfortable with Roe v. Wade. Liberals should ask themselves if, a decade later, they’re comfortable with Bush v. Gore.
The courts’ recent trends is unnecessary. As schizophrenic as we, the voters, can be at times, we have the ability to thoughtfully consider the way we want to shape our society. For every emotion-laden slugfest on FOX News or MSNBC, there are countless thoughtful conversations at family get-togethers and among friends and neighbors, where citizens debate these controversial issues and, importantly, reassess their own stands. I suspect something like that happened in New York, where four principled Republican state senators voted with 29 of their Democratic colleagues to enact a gay-marriage law, or in the 1960s when then-U.S. Senate Republican leader Everett Dirksen Gay helped push through the Civil Rights Act and Voting Rights Act in the 1960s. 
Many years ago, Dirksen quoted Victor Hugo in urging support of the Civil Rights Act of 1964: “Stronger than all the armies is an idea whose time has come.”
Clearly, Americans are engaged in a war of ideas, but the judicial forces would better serve the country by letting the people fight the cultural battles. We’re better at making those times come.
Louis F. Meizlish, a 2011 graduate of Wayne State University Law School, was the 2010-11 editor in chief of The Wayne Law Review.  He served as editor in chief of The Michigan Daily as an undergraduate at the University of Michigan in 2003, when the U.S. Supreme Court decided Grutter v. Bollinger and Gratz v. Bollinger.